Today's entry is a summary of the regime for authorising
major infrastructure projects introduced by the Planning Act 2008
and amended by the Localism Act 2011.
This is the eleventh summary, which is updated and reissued every few months. For more detailed information, you can get hold of our free 16-page brochure on the Act - click here to obtain one. For a complete picture of the new regime, Bircham Dyson Bell has written a book on it, published by Butterworths at the end of July 2009. Click this link for more details. A second edition is on the cards. For up-to-date links to all the relevant Planning Act documents, live applications etc. see this blog entry.
The vast majority of the Planning Act 2008 is geared towards speeding up the authorisation of major infrastructure, mainly in England, some types in Wales and one type in Scotland. The remainder of the Act tweaks the existing planning system and also introduces the Community Infrastructure Levy, more on which later. The Localism Act 2011 has made some changes to the regime last month, which are incorporated in what follows.
National Policy Statements
The first concept is the 'NPS' - National Policy
Statement. There are going to be 10 or 11 of these: nine have been
published at least in draft so far, and eight of these have been
finalised ('designated'). The remaining one or two will be
published over the next few months. These set out national policy
on a particular area of national infrastructure in a single
accessible document, state to a greater or lesser degree what
infrastructure is needed over the next 15-20 years, and set out the
impacts of the infrastructure that should be addressed by project
promoters when making applications, and the Planning Inspectorate
when considering them.
The 10 or 11 NPSs proposed are to have the following titles (with links to the final or latest versions of the nine that have been published already): Overarching energy (i.e. energy of all types, to sit above the other energy NPSs); Nuclear Power volume I, volume II; Fossil Fuels; Renewable Energy; Electricity Networks; Gas and Oil Infrastructure; Ports; Waste Water; Hazardous Waste; National Networks (i.e. railways, motorways, trunk roads and rail freight interchanges) and Water Supply (the one that may or may not be published).
The six energy NPSs were approved by Parliament and designated in July 2011, the Ports NPS was designated in January 2012 and the Waste Water NPS was designated in March 2012. Consultation on and Parliamentary scrutiny of the Hazardous Waste NPS has finished and the government's reaction is awaited. Parliamentary approval is another innovation of the coalition government, and is now a requirement (actually just the potential for Commons disapproval) via the Localism Act. The point of NPSs is to avoid debates about policy when applications are under consideration - nearly a quarter of the Heathrow Terminal 5 inquiry was taken up with debating whether it was needed, for example. Now, the examining inspector will just be able to say 'It says it is needed in the Airports NPS - when that came out in draft, that was your chance to debate that issue. Next, please!'
Nationally significant infrastructure projects
The second concept is 'NSIP' - Nationally Significant Infrastructure Project. This should not be confused with NPS, and is being pronounced 'ensip', which helps to distinguish it. The regime only applies to NSIPs, and the Act sets out, for each type of project, how big it needs to be for it to become an NSIP.
The 16 NSIPs are: electricity generating projects of all types;
overhead electric lines; underground gas storage; LNG facilities;
gas reception facilities; gas pipelines; other pipelines; highways;
airports; harbours; railways; rail freight interchanges;
dams/reservoirs; water transfer facilities; waste water treatment
plants and hazardous waste facilities. An order to amend the Act to
extend the waste water treatment plant category to include the
transfer or storage of waste water as well (and thereby capture the
proposed Thames Tunnel) is progressing through Parliament.
For each type of project, the Act sets out a threshold above which it becomes an NSIP. For example, a new airport would be an NSIP if it is expected to be able to handle at least 10 million passengers per year, or 10,000 air cargo movements per year. Expansions of existing facilities can also be NSIPs - if an airport is to expand by those same amounts, it would be an NSIP. The brochure I mentioned gives the threshold for all the 16 types, and whether they must be in England, Wales or Scotland.
Since 1 March 2010, it has been compulsory for applications for the first 12 of the 16 types of NSIP listed above to use the new regime - indeed illegal to build an NSIP without having used it (although a project authorised by an Act of Parliament could override this). The new regime became compulsory for waste water NSIPs on 6 April 2011 and hazardous waste NSIPs on 1 October 2011. The last types (water-related NSIPs) have still not gone 'live' so must continue to be authorised by previous methods.
It is generally forbidden for a project below the threshold to use the regime, although the government can decide that a below-threshold project, a project outside the descriptions in the Act (as long as it is an energy, transport, water, waste water or waste project) or a cluster of projects should be considered an NSIP. The coalition government originally said it would do this in one case: the Thames Tunnel sewage project, but it has decided to extend the NSIP definition instead; in the 2012 Budget it was announced that proposed Thames crossings may be the subject of an application to use the new regime. The Localism Act has made this easier - now, requests to 'upgrade' projects can be made before any application is made under the below-threshold regime. On the other hand, the government has said that High Speed 2 will be authorised by a Bill in Parliament and will not use the Planning Act regime. It is not otherwise possible to 'downgrade' a project to fall outside the regime.
Planning Inspectorate, National Infrastructure Directorate
The third concept is the National Infrastructure Directorate of
the Planning Inspectorate, either NID or PINS as you wish. In April
this replaced the short-lived Infrastructure Planning Commission as
the body that considers applications for NSIPs. The Commissioners
of the IPC largely transferred en masse to PINS and are now known
as examining inspectors.
One examining inspector, or a panel of three to five, will consider the evidence on an application (depending on its complexity - so far of 11 applications to have had inspectors appointed, five have a single commissioner, one has five (Hinkley Point C nuclear power station) and the other five have three).
PINS maintains a log of advice it gives and projects it is expecting on its website. To date, it has received 15 applications since they had to be made to it on 1 March 2010: it declined to consider the first, but accepted the next 14 for examination - two energy from waste projects, two railway chords, four windfarms, a nuclear power station, a highway, a harbour, a hazardous waste project, a biomass plant and a gas storage project. 15 other projects have started their formal pre-application consultation, and a further 47 projects are expected.
Everything about the regime is geared to speeding up the process. PINS has (fairly) fixed timescales to work to - around three months from the application being made to sort itself out procedurally, six months to consider evidence and three more months to make a recommendation, whereupon the government has a further three months to make a decision. These can be extended, however, and the then IPC decided to extend the examination period by two months in one case (although that application was subsequently withdrawn). Oral examination is discouraged (although will probably still happen to some extent on each application). Applicants will have to do a great deal of consultation before they even apply to PINS, in an attempt to front-load the process and identify areas that could be changed before things get too entrenched and expensive.
Community Infrastructure Levy
The final concept is 'CIL' or Community Infrastructure
Levy. This is a separate innovation to the new regime for
authorising NSIPs outlined above. It is designed to formalise a
tariff system for developments (consisting of buildings) getting
planning permission to contribute to the infrastructure burden that
they will create. It is up to each local authority to decide
whether to introduce it. The authority must have completed the
first iteration of its local development framework, must then
publish a 'charging schedule' for its CIL and hold an
examination into it if there are any objections. Only then can it
start to charge CIL. At least 38 local authorities have at least
published a draft charging schedule - details can be found on the
'links' blog page mentioned above. CIL has come into force
in five council areas: Newark & Sherwood, Shropshire, the
London Borough of Redbridge, Portsmouth, and London-wide.
Income from CIL is ring-fenced and must be spent on 'infrastructure' - which for this purpose has a wider meaning than in the rest of the Act, and may be widened further. The regulations introducing CIL are in force; the coalition government has decided to retain CIL and has published further regulations making minor amendments to the regime, plus a couple more in the Localism Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.